The High Court dismissed solicitor Gerald Kean’s appeal against three professional misconduct findings made by the Solicitors Disciplinary Tribunal. It did not impose the tribunal’s recommended €20,000 fine, while otherwise upholding the tribunal’s findings and recommendations.
The judgment, delivered by President of the High Court Kearns on 23 September 2014, concerned Kean’s handling of proceedings against his client, Christopher O’Neill. A marine surveyor had claimed €1,009.53 for a report and legal costs. The tribunal found that Kean knowingly led O’Neill to believe a notice of intention to defend had been submitted, failed to lodge an appeal against a summary decree, and knowingly led O’Neill to believe an appeal had been lodged and accepted.
The tribunal had not found misconduct in the initial failure to submit the defence notice. It said the evidence showed negligence in that omission, but found misconduct in Kean’s subsequent conduct. The High Court noted that Kean appealed on the record rather than seeking a full rehearing, so the court considered whether the tribunal had erred on the material before it.
The High Court rejected the appeal. It said the tribunal had sufficient evidence to find beyond reasonable doubt that Kean tried to mislead his client to cover up the original omission. The court also declined to entertain a legal argument, raised for the first time on appeal, that the conduct found could not amount to misconduct.
On sanction, Kean argued that the recommended fine was excessive, pointing to the small sums involved and the fact that O’Neill had not been left out of pocket. The court said the issue was the breach of honesty and trust between solicitor and client, rather than the amount at stake. It declined to impose the €20,000 fine, saying the misconduct finding itself would be a harsh penalty, and otherwise upheld the tribunal’s findings and recommendations. The tribunal’s recommended restitution of €500 and expenses of €750 were not expressly addressed in the judgment’s final order.